Brotton v. Langert

• Decision Date: 08 March 1890
• Parties: BROTTON v. LANGERT.
• Court: Washington Supreme Court

23 P. 803

1 Wash. 227

BROTTON v. LANGERT.

Supreme Court of Washington

March 8, 1890

Appeal from district court, Pierce county.

E. W. Taylor, for appellant.

Judson, Sharpstein & Sullivan, for appellee.

HOYT J.

Plaintiff in this action sought to recover damages for the conversion of certain articles of personal property, upon which he had a mortgage. Defendant attempted to justify as an officer by virtue of certain executions against the mortgagor. Numerous errors are assigned to the rulings of the court below, but in view of the unsatisfactory state of the record and of a division of opinion as to what is made to appear therefrom we shall only notice two of said alleged errors, and leave the questions presented by the others to be determined in some other case. During the progress of the trial plaintiff admitted that he had received certain sums of money from the mortgagor to be applied upon the mortgage debt, and, when asked as to the amount of such payments, stated that he could not tell. He was then shown a certain memorandum, and asked if by the aid thereof he could give such amount. Upon examination it appeared that such memorandum was not made by himself, but by his clerk, and that he (witness) could not say how said clerk made up the same. Upon this appearing, counsel for the defendant objected to the witness' using the memorandum in giving his testimony. The court, however, against such objection, allowed the witness to read from such memorandum as to the items of payment made by the mortgagor. Exception was duly taken to such ruling, and error assigned thereon. The amount still due upon the mortgage was material to the plaintiff's case, and, as he had testified that certain payments had been made, it became material that he should show the amount of such payments. Therefore the evidence elicited from the witness by the aid of the memorandum was material.

Was the memorandum such as the witness was authorized to read from to the jury? If it was not, it was error to allow the witness thus to use it. It is not claimed that the paper used was such as, in itself, could be introduced in evidence; but it is contended that it comes within the rule which allows certain memoranda to be used by a witness to refresh his memory when testifying. If this memorandum was of that class it is possible that it was not error to allow witness to read therefrom, though the usual course is to allow the...